Canada: Last ditch attempt to strike at Anvil

Published by MAC on 2012-04-02
Source: Statement, Global Montreal, New York Times

Congolese victims' pursuit of justice against Canadian company goes to Supreme Court

Canadian Association Against Impunity Press Release

26 March 2012

Ottawa - The Canadian Association Against Impunity (CAAI) has today filed an application with the Supreme Court of Canada on behalf of Congolese families. The families are seeking leave to appeal the Quebec Court of Appeal's decision to dismiss a human rights case against the Canadian corporation Anvil Mining Limited.

The appeal will decide whether victims will be able to hold Canadian companies accountable in Canadian courts, for their involvement in serious human rights violations committed abroad.

In November 2010, families of the Congolese victims, through the CAAI, filed a class action against Anvil Mining accusing it of having provided logistical support to the Congolese army who raped, murdered and brutalized the people of the town of Kilwa in the DRC. According to the United Nations, an estimated 100 civilians died as a direct result of the military action, including some who were executed and thrown in mass graves. Anvil Mining provided logistical support but claims it was requisitioned by the authorities and denies any wrongdoing.

In January, the Quebec Court of Appeal overturned an earlier decision of the Quebec Superior Court that found that Quebec had jurisdiction to hear the case, and that the victims would fail to get justice elsewhere - either in the Democratic Republic of Congo or in Australia, where Anvil Mining previously had its head office.

"All our attempts to seek justice have been fruitless", said Adèle Mwayuma, whose two sons were executed during the massacre. "Canada is my only hope for holding someone responsible for the murder of my children," she continued.

"We truly believe that Canada is our last resort and are asking the Supreme Court to give us the opportunity to challenge the Quebec Court of Appeal's disregard of the abundant evidence proving that access to justice in other countries has proved impossible," said CAAI president Patricia Feeney.

"My father has not lived to see justice delivered," said Dickay Kunda, whose father, a policeman, was badly beaten and tortured while in military custody. His 22-year old sister, Dorcas also died after being raped by soldiers. "But after more than seven years, we now look to the Supreme Court of Canada for justice." he added.

/Ends

The Canadian Association Against Impunity is represented by the Montréal based firm Trudel & Johnston.

For more information, please contact members of the Canadian Association Against Impunity:

Matt Eisenbrandt, Canadian Centre for International Justice (CCIJ), (English): +1 604 569-1778 (in Canada)
Denis Tougas, L'Entraide missionnaire, (French, English): +1 514 270 6089 (in Canada)
Tricia Feeney, RAID, (French, English): +44 (0) 7796178447 (in the UK)
Andie Lambe, Global Witness, (English): +44 (0) 7809 616 545 (in the UK)
Emmanuel Umpula Nkumba, ACIDH, (French): +243 997 025 331 (in the DRC)
Alfred Lukhanda, ASADHO (French): +1 514 244 7055 (in Canada)

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Montreal-based mining company accused of human rights abuses in Congo; families take case to Supreme Court

Benjamin Shingler

Global Montreal

26 March 2012

MONTREAL - Human-rights groups are turning to Canada's highest court in their effort to sue a Canadian mining company on behalf of the victims of a massacre in Congo.

The Canadian Association Against Impunity, a coalition of human rights groups and non-governmental organizations, filed a last-ditch plea to the Supreme Court of Canada on Monday.

The groups allege that Anvil Mining Limited provided logistical support to the Congolese military who raped and murdered people as it crushed a rebel uprising in 2004, killing as many as 100 people in the port city of Kilwa.

That support allegedly included planes, trucks and drivers instrumental in ending the conflict. The port was key to the operation of a copper mine, the exit point for $500,000 worth of copper and silver every day.

Nearly eight years later, victims' relatives say they have no choice but to turn to Canadian courts.

"We've been fighting for years and what we want is justice," Dickay Kunda said Sunday in a phone interview from Congo. "Our wish is to have Canada help us get justice."

Kunda says his 22-year-old sister, Dorcas, died after being raped by soldiers. His father, a policeman, was badly beaten and tortured while in military custody. He never recovered and died in November 2009.

Anvil Mining, which had offices in Montreal but has since been acquired by another mining company, has denied any culpability in the Kilwa incidents and said logistical support was requested by authorities.

The civil suit has been making its way through the courts for some time.

In January, Quebec's Court of Appeal overturned a 2011 lower-court ruling that had paved the way for it to be heard in Canada.

The appeal court ruled that Anvil's Montreal office was not involved in any of the decision-making that led to a massacre, making it inappropriate to hear the case in Quebec. It also ruled that victims could have sought justice in Congo or Australia, where the company also operated.

Last April, a lower-court judge had rejected the notion that the links between Quebec and Anvil were insufficient.

If the Supreme Court decides to hear the case, advocates say the ruling could have major implications on whether Canadian companies can be held accountable for their involvement in human rights violations committed abroad.

"I think this case is a really important one and the facts that we've alleged are so stark that it really is the kind of case a Canadian court needs to hear," said Matt Eisenbrandt, legal director for the Canadian Centre for International Justice, one of the NGOs involved.

"It can really set the ground rules for whether corporations can be sued when they are involved in human rights violations."

A Chinese company called Minmetals Resources Ltd., with headquarters in Australia, acquired Anvil earlier in March for $1.3 billion.

Sally Cox, a company spokeswoman, denied any wrongdoing on Anvil's behalf.

In an email, Cox said the incident in Kilwa has been subject to numerous investigations and court proceedings, and "no findings adverse to Anvil or any of its employees have arisen."

The attempt at civil action in Canada followed a military trial, held in Congo in 2007, where nine soldiers and three former employees of Anvil were acquitted of charges, leaving no opportunity for civil recourse.

A 2010 United Nations report said the trial had the potential to set "an important precedent in terms of corporate accountability" but "failed to meet international standards of fairness."

"The Kilwa case demonstrated the difficulty in proving the legal responsibility of private companies in the perpetration of human rights abuses and violations of international humanitarian law," the report said.

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Use of Conflict Minerals Gets More Scrutiny From U.S.

By Edward Wyatt

New York Times

19 March 2012

WASHINGTON An iPhone can do a lot of things. But can it arm Congolese rebels?

That is the question being debated by a battalion of lobbyists from electronics makers, mining companies and international aid organizations that has descended on the Securities and Exchange Commission in recent months seeking to influence the drafting of a Dodd-Frank regulation that has nothing to do with the financial crisis.

Tacked onto the end of that encyclopedic digest of financial reform is an odd provision. It requires publicly traded companies whose products use certain minerals commonly mined in strife-torn areas of Central Africa to report to shareholders and the S.E.C. whether their mineral supply comes from the Democratic Republic of Congo.

The measure is aimed at cutting off the brutal militia groups that have often taken over the mining and sale of so-called conflict minerals to finance their military aims. Just about every company affected by the law says they support it, but many business groups have also been pushing aggressively to put wiggle room in the restrictions, calling for lengthy phase-in periods, exemptions for minimal use of the minerals and loose definitions of what types of uses are covered.

Nearly every consumer product that includes electronic parts uses a derivative of one of the four minerals: columbite-tantalite, which when refined is used in palm-size cellphones and giant turbines; cassiterite, an important source of the tin used in coffee cans and circuit boards; wolframite, used to produce tungsten for light bulbs and machine tools; and gold, commonly used as an electronic conductor (and, of course, jewelry).

Given their broad application, the minerals have been a primary target of humanitarian groups concerned about genocide, sexual violence, child soldiers and other issues that have been common outgrowths of conflicts in Central Africa.

We dont think you need to have people being killed in order to have these metals in our cellphones, said Corinna Gilfillan, who heads the United States office of Global Witness, which has worked on the issue for several years.

But manufacturers question the effectiveness not to mention the practicality and expense of tracing every scrap of refined metal back to its original hole in the ground.

The challenge is that conflict minerals are a symptom, said Rick Goss, vice president for environment and sustainability at the Information Technology Industry Council, a trade group. The entrenched powers in these countries have plenty of other means to raise money. Simply cutting off one source of revenue to a warlord or military rulers is not going to stop the genocide.

The Dodd-Frank law on conflict minerals is already having an effect in Eastern Congo, damping or halting production at many mines even before the disclosure regulations for companies are in place.

It is causing, I would say, a sort of embargo on traders and diggers in Eastern Congo, Serge Tshamala, an official at the Embassy of the Democratic Republic of Congo. The longer it takes the S.E.C. to come up with guidelines, the worse it is for our people. Mr. Tshamala and other Congo government officials met with the agencys staff members in June, urging them to speed completion of the regulations.

The agency is moving slowly, however. The Dodd-Frank law set an April 2011 deadline for completion of the rules. After proposing regulations in December 2010, the agency took comments for 30 days, and received so many suggestions that it extended the period by a month.

After missing the April deadline, the agency in October conducted a roundtable for its commissioners to hear directly from manufacturers, mining companies, advocacy groups and institutional investors. This month, Mary L. Schapiro, the agencys chairwoman, said the agency hoped to complete the process in the next couple of months.

The commission already has decided to include a phase-in period to allow companies time to build networks to trace their mineral supply. But an exemption for use of trace amounts of the metals is unlikely, Ms. Shapiro said.

As Bennett Freeman, a senior vice president for sustainability research and policy at Calvert Investments put it during the roundtable last year, a very small amount of gold is used as a conductor in a cellphone, but when one takes into account the fact that there were 1.6 billion cellphones sold globally last year, that adds up to be a very significant volume of that particular metal.

Still undecided and the subject of more than 100 meetings between lobbyists and S.E.C. officials since the rule was proposed is just how the commission will decide who is covered by the conflict minerals requirement. The law says that the minerals must be necessary to the functionality or production of a product manufactured by a company.

Simple as it seems, that definition gives rise to a tangle of questions. Is mining manufacturing? Is a coffee can made with tin necessary to the functionality of the coffee being sold?

The hair-splitting answers to those questions will be the basis on which the law could be challenged in court, and it is that prospect that accounts for much of the agencys deliberate progress in fashioning the rules.

Administrative law requires an agency like the S.E.C. to conduct a cost-benefit analysis of rules. Last year, a federal appeals court cited insufficient cost-benefit research in striking down one of the agencys new regulations, and S.E.C. insiders say that decision has the agency operating in perpetual fear of a repeat occurrence.

There is little agreement on what it will cost companies to comply. The agency estimates companies will have to spend $71 million to comply with its regulations. The National Association of Manufacturers estimates the regulations will cost $9 billion to $16 billion.

Whatever the answer, part of the burden would fall on a given companys supply chain companies, that is, that are very likely not to be covered by the regulations reporting requirements, which cover only publicly traded companies.

Irma Villarreal, chief securities counsel for Kraft Foods, said during the S.E.C. roundtable that Kraft produced 40,000 distinct products and used 100,000 suppliers, creating a Herculean task of auditing supply chains for conflict minerals.

Nonprofit groups that support the new regulation say a growing number of companies Intel, Motorola and Hewlett-Packard among them, according to the Enough Project, a nongovernmental organization that works against genocide and crimes against humanity have already made significant steps to inspect and adjust their supply lines to avoid tainted sources of conflict minerals.

Our hope, said Darren Fenwick, a senior manager of government affairs for the Enough Project, is that the rule is strong enough that companies in industries that arent doing anything will start to feel the pressure in their supply chains.